Opinion
DEVICH, Acting P. J.
May a fugitive from justice appear through counsel when sued in a civil action based on conduct for which he was convicted in a criminal prosecution? We conclude that the due process clause of the Fourteenth Amendment to the United States Constitution1 compels an [1408]affirmative response to this question and therefore deny Jane Doe’s petition for a peremptory writ of mandate.
Background
In an indictment filed March 24, 1977, Roman Polanski was charged, with respect to Doe, with furnishing a controlled substance to a minor,2 lewd or lascivious act upon a child under 14, unlawful sexual intercourse, rape by use of drugs, oral copulation, and sodomy.
On August 8, 1977, Polanski pleaded guilty to one count of unlawful sexual intercourse. Criminal proceedings were adjourned, and the trial court instituted mentally disordered sex offender proceedings. (Former Welf. & Inst. Code, § 6300 et seq.) However, prior to sentencing, Polanski fled to France and has never returned.
On December 30, 1988, Doe, then 25 years old, filed a complaint against Polanski alleging causes of action for “sexual assault and battery; assault and battery; intentional infliction of emotional distress; negligent infliction of emotional distress; false imprisonment; [and] seduction.”
On June 22, 1989, through counsel, Polanski answered Doe’s complaint, generally denying the allegations and raising several affirmative defenses.
On November 22, 1989, Doe filed a motion to have Polanski’s answer stricken and a default entered against him. The motion was denied.
Thereafter, Doe petitioned this court for a peremptory writ of mandate. On March 15, 1990, we issued an alternative writ of mandate to consider whether the trial court was compelled to grant Doe’s motion.
Discussion
Relying principally on Molinaro v. New Jersey (1970) 396 U.S. 365 [24 L.Ed.2d 586, 90 S.Ct. 498] and United States v. $129,374 in U.S. Currency (9th Cir. 1985) 769 F.2d 583, Doe argues that California should not extend its protection to a person who has flagrantly snubbed our judicial system.
In Molinaro v. New Jersey, supra, 396 U.S. 365, following a criminal conviction, the appellant, who had been free on bail, failed to surrender to [1409]state authorities. In dismissing the appeal from the judgment of conviction, the United States Supreme Court stated: “No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.” (Id. at p. 366 [24 L.Ed.2d at pp. 587-588].)
This disentitlement doctrine was later extended to civil matters. In United States v. $129,374 in U.S. Currency, supra, 769 F.2d 583, 588, a case involving a motion to intervene in civil forfeiture proceedings, the court noted: “ ‘there is no indication in the Court’s decision [in Molinaro] that the [disentitlement doctrine] has any less vitality in civil cases.’ [Citation.] Rather, . . . ‘[t]o the contrary, . . . the [Molinaro] rule should apply with greater force in civil cases where an individual’s liberty is not at stake.’ [Citations.]” (See also National Union v. Arnold (1954) 348 U.S. 37 [99 L.Ed. 46, 75 S.Ct. 92]; Weeks v. Superior Court (1921) 187 Cal. 620 [203 P. 93]; MacPherson v. MacPherson (1939) 13 Cal.2d 271 [89 P.2d 382]; Travis v. Travis (1948) 89 Cal.App.2d 292 [200 P.2d 843]; Estate of Scott (1957) 150 Cal.App.2d 590 [310 P.2d 46].)
Doe’s reliance on disentitlement doctrine cases is misplaced. In each, the relevant proceeding was initiated by the fugitive.3 In the matter before us, it was Doe who initiated the lawsuit, bringing Polanski into the civil arena of the California court system. Having appeared to defend himself, Polanski does not seek relief in his own right; rather, he merely seeks the opportunity to be heard and present any defenses he may have to Doe’s causes of action.
Although we have not encountered any case law which directly controls Doe’s petition, guidance is offered by analogy to the body of law concerning findings of contempt, the seminal case of which is Hovey v. Elliott (1897) [141016]7 U.S. 409 [42 L.Ed. 215, 17 S.Ct. 841]. Hovey involved a situation where the Supreme Court of the District of Columbia ordered the defendants to “ ‘pay over to the registry of the court’ ” a sum of money they were given by a receiver at an earlier point in an action filed against them. (Id. at p. 411 [42 L.Ed. at p. 219].) Upon the defendants’ failure to comply with this order, the court found them in contempt and further ordered “ . . . ‘the answer filed by [the defendants] in the cause be stricken out, and that [the] cause proceed as if no answer therein had been interposed . . . .’” (Ibid.) The court subsequently entered a decree pro confesso against the defendants.
Following the New York Court of Appeals’ refusal to extend full faith and credit to the decree, the United States Supreme Court posed the issue before it as follows: “[W]hether a court possessing plenary power to punish for contempt, unlimited by statute, has the right to summon a defendant to answer, and then after obtaining jurisdiction by the summons, refuse to allow the party summoned to answer or strike his answer from the files, suppress the testimony in his favor, and condemn him without consideration thereof and without a hearing, on the theory that he has been guilty of a contempt of court.” (167 U.S. at p. 413 [42 L.Ed.2d at p. 219].) In holding that the action of the District of Columbia Supreme Court violated the defendants’ right to due process, the United States Supreme Court stated: “The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.” (Id. at pp. 413-414 [42 L.Ed.at p. 220].)4
Polanski’s reprehensible, irresponsible, and unlawful absence from this country, and hence his evasion of sentencing in the criminal action, are unrelated to the merits of Doe’s civil action. (See Phoceene Sous-Marine v. U.S. Phosmarine, Inc. (9th Cir. 1982) 682 F.2d 802, 806.) Polanski has not failed to comply with any discovery requests or otherwise interfered with Doe’s ability to collect evidence.5 Moreover, absent properly served notice, [1411]Polanski has no obligation to personally appear at the trial. (Code Civ. Proc., § 1987, subd. (b); Silvagni v. Superior Court (1958) 157 Cal.App.2d 287, 291-292 [321 P.2d 15].)
In sum, at this point in the litigation Polanski has committed no act or omission which would justify the sanction of depriving him of the ability to offer a defense to Doe’s claim for damages. If we were screenwriters drafting a script based on the history of Polanski’s conviction and flight from punishment, incorporating the civil and criminal aspects of his actions, we would surely create a scenario where all the characters get their “just deserts” without regard to the protective safeguards of the Constitution. However, as jurists, we are bound by constitutional principles and must apply them evenhandedly, regardless of our personal opinions of any of the litigants.
For the foregoing reasons, we find that to strike Polanski’s answer and enter a default judgment against him based solely on, and as a punishment for, his fugitive status would violate the due process clause of the Fourteenth Amendment to the United States Constitution. Accordingly, the trial court properly denied Doe’s motion.6
Disposition
The alternative writ of mandate is discharged. Jane Doe’s petition for a peremptory writ of mandate is denied.
Taylor, J.,* concurred.
Section 1 of the Fourteenth Amendment to the United States Constitution provides, in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or [1408]immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” (Italics added.)
At the time of the criminal acts charged, Doe was 13 years old.
In United States v. $129,374 in U.S. Currency, supra, 769 F.2d 583, the motion to intervene and the appeal was brought by the conservator of the fugitive’s estate. The court noted that, under applicable state law, such a conservator “stands in [the] shoes” of the fugitive. (Id. at p. 586.) Moreover, although the government is normally designated as the plaintiff in federal narcotics-related civil forfeiture proceedings, it may satisfy its low burden of proof by demonstrating probable cause that “moneys, negotiable instruments, securities, or other things of value [were] furnished or intended to be furnished ... in exchange for a controlled substance . . . .” (21 U.S.C. § 881(a)(6).) The burden then shifts to the defendant or “claimant” to demonstrate that the property to be forfeited does not fall within the ambit of the pertinent forfeiture statute. (21 U.S.C. § 881(d); 19 U.S.C. § 1615.) Thus, the defendant in a civil forfeiture proceeding is not in the same position as a defendant in an ordinary action for damages.
As subsequently noted by the United States Supreme Court in National Union v. Arnold, supra, 348 U.S. at page 42, footnote 5 [99 L.Ed. at page 51], “The deprivation of a litigant’s right to present a defense has been upheld, not as a punishment for contempt as prohibited in Hovey v. Elliott, supra, but rather as a result of the litigant’s failure to produce evidence, his violation of a rule of procedure, or other action justifying a judgment of default against him. [Citations.]”
Code of Civil Procedure sections 2027 and 2028 permit the oral or written depositions of persons residing in foreign countries. Moreover, in appropriate cases, a party may be ordered to attend a deposition at a location which is more than 150 miles from the deponent’s residence. (Code Civ. Proc., § 2025, subd. (e)(3).) Thus, contrary to the dissenting opinion’s [1411]assertion, our holding does not “unintentionally aid[] Polanski’s flight from justice by implicitly requiring [his] victim to travel to foreign soil for his deposition.” (Dis. opn., post, at p. 1414, fn. omitted.)
The dissenting opinion suggests that we should determine the boundaries of Polanski’s right to participate in the litigation, thereby avoiding “a piecemeal resolution of the matter [which] offends the orderly processes of our courts.” (Dis. opn., post, at p. 1414.) We decline to offer our opinion on matters not properly before us.
Assigned by the Chairperson of the Judicial Council.